Kasten v. Y. M. C. A.

• Decision Date: 19 March 1980
• Citation: 412 A.2d 1346,173 N.J. Super. 1
• Parties: Mimi KASTEN, Plaintiff-Appellant, v. Y. M. C. A. et al., Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 1

173 N.J.Super. 1

412 A.2d 1346

Mimi KASTEN, Plaintiff-Appellant, v.Y. M. C. A. et al., Defendants-Respondents.

Superior Court of New Jersey, Appellate Division.

Submitted Feb. 26, 1980.

Decided March 19, 1980.

Keith, Winters & Levine, Bradley Beach, for plaintiff-appellant(Stewart L. Levine, Bradley Beach, on the brief).

Richard Z. Amdur, Oakhurst, for defendant-respondent(John D. Brady, Oakhurst, on the brief).

Before Judges BOTTER, MILMED and KING.

The opinion of the court was delivered by

KING, J. A. D.

Plaintiff brought this action for personal injuries allegedly suffered on December 26, 1976 at the Arrowhead Ski Resort located in Marlboro, Monmouth County, and allegedly operated by defendant"Y.M.C.A. of Shrewsbury."She claimed her injuries from a downhill fall were caused by "defendant's negligence in renting (her) skiing equipment, including skis, boots, poles and bindings, which were in a state of disrepair and not properly fitted."Plaintiff claimed that she was a business invitee on defendant's premises.

Defendant moved for summary judgment, claiming charitable immunity pursuant to L.1959, c. 90, § 1;N.J.S.A. 2A:53A-7, which states:

No nonprofit corporation, society or association organized exclusively for religious, charitable, educational or hospital purposes shall, except as is hereinafter set forth, be liable to respond in damages to any person who shall suffer damage from the negligence of any agent or servant of such corporation, society or association, where such person is a beneficiary, to whatever degree, of the works of such nonprofit corporation, society or association; provided, however, that such immunity from liability shall not extend to any person who shall suffer damage from the negligence of such corporation, society, or association or of its agents or servants where such person is one unconcerned in and unrelated to and outside of the benefactions of such corporation, society or association; but nothing herein contained shall be deemed to exempt the said agent or servant individually from their liability for any such negligence.(Emphasis supplied)¹

This act largely restored the common law immunity which eleemosynary institutions enjoyed prior to our Supreme Court's decisions in Collopy v. Newark Eye & Ear Infirmary, 27 N.J. 29, 141 A.2d 276(1958), andDalton v. St. Luke's Catholic Church, 27 N.J. 22, 141 A.2d 273(1958).See discussion inLawlor v. Cloverleaf Memorial Park, Inc., 56 N.J. 326, 336-338, 266 A.2d 569(1970).

In support of the motion defendant relied on the affidavit of W. Van Lenten, the "Branch Executive of the Community YMCA, Camp Arrowhead, Bayshore Branch, incorrectly named in the complaint as YMCA of Shrewsbury."He admitted that the subject "Arrowhead Family Center & Ski Area is owned by and is part of Community YMCA which serves Upper Monmouth County."Van Lenten's affidavit describes the integration of the profit-making ski operation in the overall Y.M.C.A. operation as follows:

3.Community YMCA operates on an annual non-profit basis.This ski budget, combined with our summer, spring and fall activities, represents an annual break-even budget.

4.The ski operation is part of the overall YMCA Corporation, which is a non-profit corporation under Title 15, under the New Jersey Statutes.

5.Money received from the ski operation does not begin to cover the entire cost of operating the extensive YMCA facilities, but is used to help defray the direct expenses related to the ski operation such as salaries for lift attendants, cashiers, snow making, rental clerks and administrative employees.In addition, the ski program helps to defray the overhead costs of the Arrowhead Outdoor Center, which includes salaries of professional, clerical and custodial staff members.

6.This YMCA ski operation is certainly part of the overall charitable scheme of the YMCA whose objectives include serving youth and families, promoting physical fitness, operating within a balanced budget, eliminating sexism and racism and developing a lay organization that perpetuates a strong YMCA.Skiing is a vital and important program that adds to our capability of accomplishing these objectives.

From this description we infer that the ski operation turns a net profit which is used to underwrite the other Y.M.C.A. community programs which produce a net monetary loss annually.

Plaintiff paid defendant a rental fee for skis and boots and, according to defendant's answer to interrogatory 19, an "adult tow fee non-YMCA member $7."In her affidavit in opposition to the motion, plaintiff stated that she"strongly contests this asserted immunity as I treated this ski resort as any other private facility and paid fees both for rental of equipment and for use of the facilities.Furthermore, I am not a member of the YMCA nor have I ever been."Plaintiff also incorporated in her affidavit an advertisement for the facility which appeared on January 5, 1979, a month before the motion was heard, in the Asbury Park Press.The advertisement entreated the public to "COME SKI WITH US, Save Time Energy Money, Ski Close to Home at the YMCA Arrowhead Ski Area, Rt. 520, Marlboro" at Monmouth County's "only ski area."No advertisement contemporaneous with the 1976 accident was presented to the court.

The Law Division judge ruled for defendant Y.M.C.A. on the immunity issue, stating that

. . . (T)he Y.M.C.A. is a nonprofit organization with a particular purpose in mind and that among its particular purposes is to advance the general health of the people who engage in activities supported by the Y.M.C.A., that whatever profit they make at Arrowhead, if in fact they do make a profit, again is put into general activities of the Y.M.C.A. for the purposes for which it was organized . . .

and that plaintiff was a "recipient of the benefactions" of defendant.

The issue on this appeal is whether plaintiff, a nonmember of defendant Y.M.C.A., who rents equipment and pays a nonmember's tow fee, is barred by N.J.S.A. 2A:53A-7 where she patronizes defendant's profit-making ski operation only and receives no other benefits from the Y.M.C.A. Plaintiff does not dispute that the Y.M.C.A. is generally a "nonprofit corporation . . . organized exclusively for . . . charitable, (and) educational . . . purposes," within N.J.S.A. 2A:53A-7.SeeLawlor v. Cloverleaf Memorial Park, 56 N.J. 332, 336-338, 266 A.2d 569(1970);Pomeroy v. Little League Baseball of Collingswood, 142 N.J.Super 471, 474, 362 A.2d 39(App.Div.1976);Hauser v. Y. M. C. A., 91 N.J.Super. 172, 175-176, 219 A.2d 532(Law Div.1966);Stoolman v. Camden Cty. Council Boy Scouts, 77 N.J.Super. 129, 133, 136, 185 A.2d 436(Law Div.1962).

Therefore, the sole question before us is whether, in the words of the statute, plaintiff was "a beneficiary, to whatever degree, of the works" of the Y.M.C.A., or rather was "one unconcerned in and unrelated to and outside of the benefactions of" the Y.M.C.A.From our cases it appears that the inquiry is a two-fold one, involving consideration of each of the parties separately.As was stated in Sommers v. Union Beach First Aid Squad, 139 N.J.Super. 425, 354 A.2d 347(App.Div.1976):

Since enactment of the statute our courts have looked to the nature of the activity being undertaken by the allegedly immune defendant when the cause of action arises.The controlling test in that regard has been stated to be "whether the institution pleading the immunity, at the time in question was engaged in the performance of the charitable objectives it was organized to advance," and whether plaintiff then was truly a beneficiary thereof.Anasiewicz v. Sacred Heart Church, 74 N.J.Super. 532, 536(181 A.2d 787, 790)(App.Div.1962).SeeBook v. Aguth Achim Anchai of Freehold, N. J., 101 N.J.Super. 559(245 A.2d 51)(App.Div.1968);Peacock v. Burlington Cty. Historical Soc., 95 N.J.Super. 205(230 A.2d 513)(App.Div.1967);Wiklund v. Presbyterian Church of Clifton, 90 N.J.Super. 335(217 A.2d 463)(Cty.Ct.1966).See also, the statutory precursors at common law, Bianchi v. South Park Presb. Church, 123 N.J.L. 325(8 A.2d 567)(E. & A.1939);Boeckel v. Orange Memorial Hosp., 108 N.J.L. 453, 456(158 A. 832)(Sup.Ct.1932).(139 N.J.Super. at 431, 354 A.2d 350).

Accord, Pomeroy v. Little League Baseball of Collingswood, supra, 142 N.J.Super. at 475, 362 A.2d 39.

Plaintiff contends that the ski operation here is essentially no different than the "bingo"cases, where the general public is invited to pay and play and the profit goes into the general coffers of the church or synagogue, which are not immunized from tort liability by the statute.SeeBook v. Aguth Achim Anchai of Freehold, N. J., 101 N.J.Super. 559, 245 A.2d 51(App.Div.1968);Jewell v. St. Peter's Parish, 10 N.J.Super. 229, 76 A.2d 917(Cty.Ct.1950).Defendant contends that plaintiff's enjoyment of the ski facility, even though she paid therefor, makes her a beneficiary to some degree of the charitable and educational works of the Y.M.C.A. rather than a person "unconcerned in and unrelated to and outside of the benefactions" of defendant.N.J.S.A. 2A:53A-7.SeeAnasiewicz v. Sacred Heart Church, 74 N.J.Super 532, 181 A.2d 787(App.Div.), certif. den.38 N.J. 305, 184 A.2d 419(1962)(nonparishioner guest at church wedding ceremony barred);Bianchi v. South Park Presbyterian Church, 123 N.J.L. 325, 8 A.2d 567(E. & A.1939)(girl scout injured at meeting in church barred although not church member).Defendant also contends that § 4 of the act, L.1959, c. 90, restoring the charitable immunity which eleemosynary institutions enjoyed at common law, which states:

This act shall be deemed to be remedial and shall be liberally construed so as to afford immunity to the said corporations, societies and associations from liability as provided herein in furtherance of the public policy for the protection of nonprofit corporations, societies and associations organized...